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‘Just Ridiculous’

SCOTUS Decision In NetChoice Cases to Weigh Heavily on States, Webinar Told

If the U.S. Supreme Court blocks social media laws in Florida and Texas, it could have a chilling effect on states trying to regulate online content, a panel of experts said Tuesday. Speaking at a Federalist Society webinar event, panelists said a ruling bolstering the tech industry’s First Amendment rights could jeopardize the constitutionality of laws aimed at regulating kids’ online safety. The Supreme Court held oral argument Monday in NetChoice v. Paxton (22-555) and Moody v. NetChoice (22-277) (see 2402260051).

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States shouldn’t decide what content social media platforms host, but they should be encouraged to experiment with new regulations for an industry that is causing real-world harm, said Zephyr Teachout, Fordham Law School professor: “I hope the court errs on the side of caution” in potentially siding with the tech industry. Many are predicting a Supreme Court majority ruling in favor of NetChoice on First Amendment grounds (see 2402230040).

States have “robust police powers” to ensure public health and safety, said Julia Mahoney, University of Virginia law professor. That doesn’t mean state governments can silence users at will, but there “are real problems” states should address, including kids’ safety, she said: “The idea that because [platforms are] private entities they somehow enjoy some kind of untrammeled rights the government can’t regulate ... is just ridiculous.”

Laws can be carefully crafted to prohibit platforms from targeting children and harming them through promoted content, said Ryan Bangert, Alliance Defending Freedom senior vice president-strategic initiatives. The SCOTUS cases are “so difficult” because they involve a collision between government and Big Tech seen through a First Amendment lens that's “completely unclear,” given the varying applications discussed at argument Monday, he said.

It’s unclear whether the parties arguing or the Supreme Court fully understand the distinctions between all the technologies discussed, said Vanderbilt University law professor Ganesh Sitaraman. He noted regulation and speech rights vary widely when comparing “one-to-one” communication on an email or text service or “one-to-many” communications through radio, broadcast and social media. “It’s critical to disentangle” all these different models, he said. “The nature of how you would apply a common carrier set of rules” will vary by technology, he said.

Social media platforms are “readily common carriers,” said Sitaraman: Market power, network effects and economies of scale play into this notion. In these sectors, there's generally a “duty to serve all comers,” he said. “That’s an important component of being a common carrier, for exactly these monopoly-like reasons.” Monopolistic service providers shouldn’t be able to deny vital services, but there’s a spectrum for defining services like platforms, newspapers and shopping malls as common carriers.

Parade organizers, telegraph companies and newspapers, which have established Supreme Court precedent on speech issues, bear similarities to social media platforms, said Mahoney. But none of them is “even close” to the same thing, and the justices recognized this, she said. Regardless of whether platforms can be considered common carriers, states can regulate Big Tech, she said.

Some case law can help guide the court, said Teachout. She noted how on Monday NetChoice relied heavily on Miami Herald v. Tornillo. The court in that 1974 case ruled the government can’t force newspapers to carry political candidates' speech, finding a Florida law seeking political neutrality by the newspaper violated the First Amendment. That decision, she said, was then limited in PruneYard Shopping Center v. Robins. The Supreme Court in that 1980 case upheld a California Supreme Court decision blocking a California mall from preventing a group of high school students from canvassing signatures for a U.N.-related protest. PruneYard made clear that Tornillo wasn’t intended to undermine all state regulations on nondiscrimination, she said.

There are ways to regulate tech platforms to “prevent them from abusing their power,” said Bangert. Policymakers need to find legislative approaches for addressing this problem in a way that honors the First Amendment, he said.

Panelists agreed the laws in Florida and Texas are overly broad because they were rushed through drafting as a political response to social media platforms banning former President Donald Trump. “We’re at the very beginning of this long conversation,” said Bangert. “This is an important opening to that conversation.”